Wisniewski & Ors v Regional Court of Wroclaw, Poland & Ors

In a conviction case under section 14 of the Extradition Act 2003, a requested person becomes unlawfully at large only when liable to serve an immediate custodial sentence. For a suspended sentence, that is ordinarily when the sentence is activated. The question is objective and does not depend on the person knowing of the activation.

However, a person who knowingly leaves the requesting state and thereby prevents compliance with obligations under a suspended sentence, while knowing that imprisonment may result, is a fugitive. That person cannot rely on delay caused by that conduct as a statutory bar to extradition. Article 8 requires a proportionality assessment, but the weighty public interest in extradition and enforcement of foreign suspended sentences will usually prevail unless family consequences are exceptionally severe.

Three requested persons appealed extradition orders made under Part 1 of the Extradition Act 2003 on conviction European arrest warrants issued by Polish courts. Each had received a suspended custodial sentence, left Poland before its activation, and was subsequently sought to serve the activated sentence.

The District Judges found that each appellant was a fugitive and rejected the passage-of-time bar. They also held, where Article 8 was relied upon, that extradition was proportionate. The appeals raised the relationship between becoming unlawfully at large under section 14, fugitive status where the person did not know that a suspended sentence had been activated, and the proportionality of extradition under Article 8.

1. All three appeals were dismissed. The court held that section 14(b) of the Extradition Act 2003 permits reliance, in a conviction case, only on time since the requested person became unlawfully at large. A person serving a suspended sentence is not unlawfully at large merely because he has breached its conditions. He becomes unlawfully at large when the sentence is activated and he is liable to immediate imprisonment. This is an objective question; knowledge of activation is unnecessary.

2. The court distinguished that statutory question from the non-statutory fugitive principle derived from Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 and Gomes v Government of the Republic of Trinidad and Tobago; Goodyer v Government of the Republic of Trinidad and Tobago [2009] 1 W.L.R. 1038. A person who knowingly puts himself beyond the reach of the criminal process cannot invoke delay caused by that conduct. Thus, a person who voluntarily leaves the state, knowingly prevents performance of suspended-sentence obligations and knows that activation may follow, is a fugitive even if unaware that activation has in fact occurred.

3. The court rejected the knowledge-based approach in Pinto v Judicial Authority of Portugal [2014] EWHC 1243 (Admin) and Herman v Polish Judicial Authority [2015] EWHC 2812 (Admin). It approved and followed the relevant fugitive analysis in Salbut v Circuit Court, Gliwice [2014] EWHC 4275 (Admin), while disagreeing with that case's earlier timing of when a person is unlawfully at large.

4. On the facts, each appellant had knowingly breached obligations connected with the suspended sentence and had placed himself or herself beyond the Polish authorities' reach. Each was therefore a fugitive and could not rely on section 14. In any event, extradition was neither unjust nor oppressive by reason of delay.

5. The District Judges had correctly applied Article 8. They balanced the family consequences against the powerful public interest in honouring extradition obligations, respecting Polish sentencing and enforcement policy, and avoiding safe havens. Their proportionality conclusions were not wrong.

• High Court (Administrative Court) — dismissed the three appeals against extradition orders.
• Westminster Magistrates’ Court — District Judge Grant ordered the extradition of Mr Wisniewski and Mr Sapor on 20 November 2015. District Judge Zani ordered Miss Wirynska’s extradition on 20 November 2015.